alto 9th crcuit opinion

8/13/2019 Alto 9th Crcuit Opinion

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ALBERT P.ALTO;ANDRE E.ALTO;

ANTHONY ALTO;BRANDON ALTO;

CHRISTY ALTO;CHRISTOPHER J.

ALTO;DANIEL J.ALTO,JR.;DANIEL

J.ALTO,SR.;DOMINIQUEN.ALTO;RAYMOND E.ALTO,SR.;RAYMOND

E.ALTO;RAYMOND J.ALTO, aRepresentative for Ben Alto,

deceased, Marcus M. Alto, deceased,

Marcus R. Alto, deceased, DavidGomez, deceased, Susan Martinez,

deceased; ROBERT ALTO;RONALD J.

ALTO,SR.;VICTORIA (ALTO)

BALLEW;ANGELA (MARTINEZ-MCNEAL)BALLON;JUAN J.BALLON;

REBECCA (ALTO)BALLON;RUBY

BALLON;JANICE J.BANDERAS;PETER BANDERAS;VICTOR

BANDERAS;DAVID A.BROKIEWICZ;

DIANA BROKIEWICZ;PATRICIA D.BROKIEWICZ;MONICA (SEPEDA)

DIAZ;ANTHONY FORRESTER;

DUSTIN FORRESTER;JOHANNA

(ALTO)FORRESTER;SARAH

FORRESTER;ERNEST GOMEZ;

HENRIETTA (ALTO)GOMEZ;

KATHLEEN M.GOMEZ;HUMBERTO

R.GREEN;LYDIA (ALTO)GREEN;

PAUL ANTHONY GREEN;MARY JO

No. 12-56145

D.C. No.

3:11-cv-02276-

IEG-BLM

OPINION

Case: 12-56145 12/26/2013 ID: 8916110 DktEntry: 47-1 Page: 1 of 39


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(ALTO)HURTADO;JUSTIN A.ISLAS;

CYNTHIA (SEPEDA)LEDESMA;DESTINY C.LEDESMA;AMANDA M.

MINGES;ISABELLE M.SEPEDA;LUPE

SEPEDA;DEBORAH L.VARGAS;DESIREE VARGAS;JEREMIAH

VARGAS;JESSIAH VARGAS;TERRY

WEIGHT;JASON ALTO;CAROL EDITH

CAVAZOS;AIMEE RENAE DIAZ;

DANIEL GOMEZ;LISA GOMEZHUNTOON;CHRISTINE MARTINEZ;

MARLENE M.MARTINEZ;CASSANDRA SEPEDA;PAMELA J.

ALTO, as Guardian ad litem for

Marcus M. Green, a minor; PEDRO

BANDERAS, as Guardian ad litem for

Reina A. Banderas, a minor; DAWN

CASTILLO, as Guardian ad litem forAlexis N. Ledesma, a minor, and

Jesse Ledesma, a minor; MARIA A.

PEREZ-ROLON, as Guardian ad litemfor Roland J. Alto, Jr., a minor;

MARTIN DIAZ, as Guardian ad litem

for Jessica Diaz, a minor, Toni L.

Diaz, a minor, and Jacob Diaz, aminor; DONALD MARTINEZ, as

Guardian ad litem for Donelle

Martinez, a minor, Justine Martinez,a minor, and Sabrina Martinez, a

minor,

Plaintiffs-Appellees,

v.



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MICHAEL BLACK, Director of theBureau of Indian Affairs of

Department of Interior; ROBERT

EBEN, Superintendent of the Bureauof Indian Affairs, Southern

California Agency, of Department of

Interior; KEVIN K.WASHBURN,Assistant Secretary of Indian Affairs

of Department of Interior; SALLYJEWELL, Secretary of Department of

Interior,Defendants-Appellees,

And

DOE, Defendants, 1 through 10,

inclusive,Defendant,

SAN PASQUAL BAND OF MISSIONINDIANS,

Intervenor-Appellant.

Appeal from the United States District Courtfor the Southern District of California

Irma E. Gonzalez, Chief District Judge, Presiding

Argued and Submitted

February 11, 2013Pasadena, California

Filed December 26, 2013



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Before: Marsha S. Berzon and Paul J. Watford, CircuitJudges, and James G. Carr, Senior District Judge.*

Opinion by Judge Berzon

SUMMARY**

Tribal Affairs

In an appeal from the district courts orders denying amotion to dissolve a preliminary injunction and denying

motions to dismiss in an action concerning a dispute over

membership in an Indian tribe, the panel affirmed in part,dismissed in part, and remanded.

The San Pasqual Band of Mission Indians governingdocuments vested the United States Department of Interior,

Bureau of Indian Affairs, with ultimate authority over

membership. The panel held that the district court hadjurisdiction to enjoin preliminarily the enforcement of theBureau of Indian Affairs order upholding the Bands

decision to disenroll descendants of Marcus Alto, Sr. from the

Band, and that the Band was not a required party, because theclaims underlying the preliminary injunction concern solely

the propriety of final agency action. Accordingly, the panel

affirmed the district courts denial of the Bands motion to

*The Honorable James G. Carr, Senior District Judge for the U.S.

District Court for the Northern District of Ohio, sitting by designation.

**This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.



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dismiss the claims on which the injunction rests and thedistrict courts consequent refusal to dissolve the preliminary

injunction. The panel remanded to allow the district court to

clarify its order. Finally, the panel held that it lackedjurisdiction to review on interlocutory appeal the Bands

motion to dismiss the Altos other claims, on which the

district court expressly deferred ruling.

COUNSEL

Geoffrey D. Strommer (argued), Vernon L. Peterson, andTimothy C. Seward, Hobbs, Straus, Dean & Walker, LLP,

Portland, Oregon, for Intervenor-Appellant.

Thor O. Emblem (argued) and Tracy L. Emblem, Law

Offices of Thor O. Emblem, Escondido, California, for

Plaintiffs-Appellees.

John L. Smeltzer (argued), Ignacia S. Moreno, Assistant

Attorney General, and Katherine J. Barton, Environment andNatural Resources Division, United States Department of

Justice, Washington, D.C., for Federal Appellees.



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OPINION

BERZON, Circuit Judge:

Our question concerns the propriety of a preliminary

injunction issued with regard to a dispute over membership

in an Indian tribe. [A] tribes right to define its own

membership for tribal purposes has long been recognized ascentral to its existence as an independent political

community. Cahto Tribe of Laytonville Rancheria v.Dutschke, 715 F.3d 1225, 1226 (9th Cir. 2013) (quoting SantaClara Pueblo v. Martinez, 436 U.S. 49, 72 n.32 (1978)). In

view of the importance of tribal membership decisions and as

part of the federal policy favoring tribal self-government,matters of tribal enrollment are generally beyond federal

judicial scrutiny. See Lewis v. Norton, 424 F.3d 959, 961 (9th

Cir. 2005). Here, however, the tribes own governingdocuments vest the United States Department of Interior,

Bureau of Indian Affairs (BIA), with ultimate authority

over membership decisions. The issues in this case center on

whether, and to what degree, this circumstance varies theusual judicial hands off policy for tribal membership

decisions.

Specifically, we must decide whether the district court

had jurisdiction to enjoin preliminarily the enforcement of a

BIA order upholding the Bands decision to disenrolldescendants of Marcus Alto, Sr. (the Altos), from the San

Pasqual Band of Mission Indians (the Band or the Tribe),

and whether such injunctive relief may issue in the Bands

absence. We hold that the exercise of jurisdiction was proper,

and that the Band is not a required party for the adjudicationof the claims underlying the preliminary injunction, as they

concern solely the propriety of final agency action.



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Accordingly, we affirm the district courts denial of theBands motions to dismiss the claims on which the injunction

rests and its consequent refusal to dissolve the preliminary

injunction. And we remand to allow the district courtformally to clarify its order in compliance with our

understanding of it, as described below. We lack jurisdiction

to review on interlocutory appeal the Bands motion to

dismiss the Altos other claims, on which the district courtexpressly deferred ruling.

I. FACTS & PROCEDURAL HISTORY

A. The Enrollment Dispute

The San Pasqual Band of Mission Indians is a federally

recognized Indian tribe whose ancestors occupied the San

Pasqual Valley, east of San Diego, California. Article III,section 2 of the Bands Constitution gives the Secretary of the

Interior final authority over tribal enrollment decisions. See

Const. & Bylaws of the San Pasqual Band of Mission Indians,

art. III, 2 (Const. of the Band). The Constitution alsoexpressly incorporates federal regulations, adopted in 1960

and formerly codified at 25 C.F.R. 48.148.15 (the 1960

Regulations), which addressed tribal enrollment criteria, theprocess for completing an initial membership roll, the

procedures for keeping the membership roll current, and the

purposes for which the roll was to be used.

The 1960 Regulations have since been removed from the

Code of Federal Regulations,1 but the reference to them

1SeeEnrollment of Indians of the San Pasqual Band of Mission Indians

in California, 52 Fed. Reg. 31391-01 (Aug. 20, 1987) (noting the

redesignation of the 1960 Regulations from 25 C.F.R. Part 48 to 25 C.F.R.



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remains in the Tribes Constitution. The parties agree that thesubstance of the otherwise defunct 1960 Regulations survive

as tribal law and govern enrollment decisions for the Band.

In 1987, Marcus Alto, Sr. and his descendants applied to

be added to the San Pasqual Band membership roll, on the

basis of Marcus Alto Sr.s claimed linear descent from Jose

Alto and Maria Duro, both listed as members of the Band onthe 1910 Census Roll.2 Under 25 C.F.R. 48.5(b) (1960),

[d]escendants of Indians whose names appear as membersof the Band on the Census Roll are eligible for enrollment,provided they possess one-eighth or more degree of Indian

blood of the Band and are not affiliated with any other tribe.

The Altos applications were adjudicated by the BIAsSuperintendent of the Southern California Agency after Alto,

Sr.s death in 1988, resulting, in 1991, in a finding that the

Altos were eligible for membership. The Band appealed theenrollment decision to the BIAs Assistant SecretaryIndian

Affairs, who affirmed.

So stood the Altos legal status until, in 2007, anindividual member of the Band formally challenged Marcus

Part 76); Enrollment of Indians; Removal of Regulations, 61 Fed. Reg.

27780-01 (June 3, 1996) (removing Part 76). All references to the federal

regulations incorporated into the Bands Constitution are to the version

adopted in 1960.

2Such membership disputes have been proliferating in recent years,

largely driven by the advent of Indian gaming, the revenues from which

are distributed among tribal members. See generallySuzianne D. Painter-

Thorne,If You Build It, They Will Come: Preserving Tribal Sovereignty

in the Face of Indian Casinos and the New Premium on TribalMembership, 14 Lewis & Clark L. Rev. 311, 313 & nn.810, 320 (2010);

see also Alvarado v. Table Mountain Rancheria, 509 F.3d 1008, 101415

(9th Cir. 2007);Lewis, 424 F.3d at 960.



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Alto, Sr.s enrollment before the Bands EnrollmentCommittee. The contention was that Alto, Sr. was the

adoptive son of Jose Alto and Maria Duro, not their

biological child, and therefore did not have the requisitedegree of Indian blood to be enrolled as a member of the

Band.3 The Committee voted to disenroll Alto, Sr.s

descendants, and, after notifying the Altos, requested that the

BIA Regional Director approve its disenrollment decision onthe basis of the new evidence. See 25 C.F.R. 48.5(b)

(1960).

When the Regional Director denied the request, the Band

appealed his decision to the Assistant SecretaryIndian

Affairs. The Assistant Secretary reversed the decision of theRegional Director, issuing the 22-page 2011 Disenrollment

Order challenged in this suit. Making his own findings of

fact, the Assistant Secretary concluded that, applying theBands membership criteria set forth in the 1960 Regulations,

the Altos names must be deleted from the Bands

membership rolls because enrollment was based on

inaccurate information regarding Marcus Alto, Sr.s bloodlineage.

The Altos thrice sought reconsideration of the AssistantSecretarys decision. After receiving no response, they filed

the instant suit.

3 The U.S. District Court for the Southern District of California

dismissed two previous challenges to the BIAs approval of the Altos

enrollment, citing various bars to litigation, including inter alia, standing,

statute of limitations, and compulsory joinder. See Order GrantingDefendants Motion to Dismiss Complaint, Caylor v. BIA, No. 03-cv-1859

(S.D. Cal. Apr. 22, 2004); Order Granting Defendants Motion to Dismiss,

Atilano v. BIA, No. 05-cv-1134 (S.D. Cal. Dec. 1, 2005).



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B. The Federal Litigation

The Altos sued the Assistant Secretary and other federal

officials, all in their official capacities,4 and movedconcurrently for a temporary restraining order and

preliminary injunction. The complaint did not name the Band

as a defendant.

The Altos initial pleadings describe four claims for

declaratory and injunctive relief.5

The first three claims seekthe courts invalidation of the 2011 Disenrollment Order dueto various alleged errors in the agencys decisionmaking.

Specifically, the first claim asserts that the 1995 decision of

the Assistant Secretary, upholding Marcus Alto, Sr.smembership in the Band, precluded the Assistant Secretarys

2011 Disenrollment Order under the doctrine of res judicata;

the second contends that the Assistant Secretarys decisionviolated the Altos rights to procedural due process; and the

third seeks reversal of the Disenrollment Order on the ground

that it was arbitrary and capricious agency action.

4 For purposes of this opinion, we refer to all of the federal defendants

collectively as the BIA.

5The Alto descendants added a fifth claim for relief when they amended

their complaint in March 2012, after the issuance of the preliminary

injunction before us. This fifth claim seeks: (a) an order directing the BIA

and the Department of Interior to acknowledge that the Alto descendants

were never removed from the Bands federally approved membership roll

and are therefore entitled to per capita payments under the Indian Gaming

Regulatory Act (IGRA), 25 U.S.C. 27012721, and/or the Indian

Civil Rights Act (ICRA), 25 U.S.C. 13011303; and (b) an order

directing the federal government to exercise its fiduciary responsibilityand protect the Plaintiffs right to equal treatment in tribal membership

benefits. The district court has not yet ruled on any aspect of this claim,

so we do not do so either.



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The Administrative Procedure Act (APA) provides aright to judicial review of all final agency action for which

there is no other adequate remedy in a court. 5 U.S.C.

704. Although only the third claim is explicitlydenominated as an APA claim in the complaint, the first three

claims all involve challenges to the propriety of the BIAs

decision. All three may therefore be fairly characterized as

claims for judicial review of agency action under the APA,5 U.S.C. 701706. See Skinner v. Switzer, 131 S. Ct.

1289, 1296 (2011) ([U]nder the Federal Rules of CivilProcedure, a complaint need not pin plaintiffs claim forrelief to a precise legal theory.);McCalden v. Cal. Library

Assn, 955 F.2d 1214, 1223 (9th Cir. 1990) (holding that a

plaintiff is not required to state the statutory or constitutionalbasis for his claim, only the facts underlying it).

Alleging that the BIA has failed to fulfill its fiduciaryduty to protect their interests, the fourth cause of action

requests a preliminary injunction to preserv[e] the [Altos]

status quo rights and benefits. As elaborated in their motion

for a preliminary injunction, the Altos sought a court orderprohibiting the removal of enrolled Alto descendants from the

Tribes membership rolls and compelling the BIA, pending

resolution of this suit, to order the Band to provide the Altoswith continued rights and benefits of tribal membership

(including access to health care, participation in tribal

governance decisions, and disbursements of tribal gamingrevenues).

Soon after the filing of the initial complaint, the Band

moved to appear specially as a necessary party and sought

dismissal of the suit under Federal Rule of Civil Procedure



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12(b)(7) for inability to join a required party under Rule 19.6Joinder was barred, the Band maintained, because of tribal

sovereign immunity.

The district court declined to dismiss the action, reasoning

that complete relief could be afforded absent the Tribe. The

court then granted the Altos request for a preliminary

injunction, holding that the Altos had raised substantialquestions going to the merits of their res judicata and

arbitrary and capricious decisionmaking claims; that theywere likely to suffer irreparable harm due to the loss of accessto rights and benefits associated with tribal membership; and

that the balance of equities tipped sharply in their favor. The

preliminary injunction forbid the BIA from removing theAltos from the Bands membership roll or taking any further

action to implement the January 2011 Disenrollment Order

pending completion of the litigation. The injunction alsorequired the Assistant Secretary to issue interim orders

directing the Band to: allow the Altos access to voting rights,

meetings of the Bands council, and Indian Health Service

(IHS); make per capita distributions to the Altos of gamingrevenue for the duration of the lawsuit; and escrow the

juvenile Altos per capita trust funds, to the same extent as

was required during the pendency of the administrativeproceedings and before the issuance of the January 28, 2011

[disenrollment] order.

The following month, the Assistant Secretary issued a

Memorandum Order and Report of Compliance with the

Preliminary Injunction. The Memorandum Order began by

6Following stylistic amendments enacted in 2007, Federal Rule of Civil

Procedure 19 no longer refers to indispensable parties, but instead uses

the term required party. We do so as well.



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explaining that, in the Assistant Secretarys view, he lacksauthority to compel the Band to comply with all aspects of

the orders, exactly as phrased by the court. Accordingly, the

Order advise[d] the Band that denying the Altos votingrights shall be recognized as a denial of [their] due process

rights, and will not be recognized by the Department. It

notif[ied] IHS and the Band that the Altos are eligible for

health services and that the Assistant Secretary expect[s]IHS and the Band to comply with regulations regarding the

provision of those services. And finally, the order advisedthe Tribe that denying distribution of per capita payments tomembers would constitute a violation of the Bands Revenue

Allocation Plan (RAP) and that while this order is in effect,

the Band mayplace all per capita distributions to the Altodescendants (including minors) into an escrow account

created for this purpose. If the Alto descendants ultimately

prevail in this litigation, the Band must distribute the funds inthe escrow account to the Alto descendants, including

distribution to the minors trust fund as set forth in the Bands

approved RAP.

The Alto descendants, objecting to the Memorandum

Order as noncompliant with the preliminary injunction,

moved the district court to compel the BIAs compliance withthe portion of the preliminary injunction that required the

agency to directthe Band to pay per capita gaming revenues

to the Altos for the duration of the lawsuit. The district courtdenied the objections and motion to compel compliance, but

did not formally amend the injunction to reflect the BIAs

concerns about the scope of the Secretarys authority.7

7We discuss the scope of the injunction in more detail in Part II.B.



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Once the preliminary injunction was in place, the Bandsought and was granted the right to intervene, without

waiving its sovereign immunity, for the limited purpose of

filing jurisdictional motions. The Band then moved todissolve the injunction for lack of jurisdiction. Its bases for

that request were, first, the assertion that the courts

preliminary injunction order depended on jurisdictionally

impermissible interpretations of tribal law; and, second, thatthe preliminary injunction order subjects the Band to

substantial inequities, by providing relief running againstthe Bands self-governance and property interests. Inaddition, the Band renewed its earlier motion to dismiss the

suit under Rule 12(b)(7), for inability to join a Rule 19-

required party, and under Rule 12(b)(1), for lack of subjectmatter jurisdiction.

The BIA objected to the Bands motion in part, arguingthat the Band is not a required party for the Altos first three

causes of action. The agency agreed with the Band, however,

that the court lacked subject matter jurisdiction over the

fourth and fifth causes of action.

Citing the lack of any indication by the BIA that it could

not make efforts to preserve the status quo pending resolutionof the merits of [the Altos] claims under the APA, the

district court refused to dissolve the preliminary injunction.

The court proceeded, for purposes of ruling on the motion todismiss, to bifurcate the Altos first three causes of action

from the last two. Reiterating its earlier decision denying the

Tribes motions to dismiss the first three claims on federal

question or Rule 19 grounds, the court delayed adjudication

of the motions to dismiss with regard to claims four and five,citing: (1) uncertainties regarding the Altos ability to

demonstrate subject matter jurisdiction over their fourth and



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fifth claims for relief; (2) skepticism about the courts abilityto proceed to the merits of those claims in the Bands

absence; and (3) the possibility that a decision upholding the

Disenrollment Order would moot the fourth and fifth claims.

The Tribe timely appealed both the refusal to dissolve the

injunction and the denial of its motions to dismiss.

II. DISCUSSION

A. The Present Challenge to the Preliminary Injunction

We begin by clarifying the scope of the challenge before

us. The issuance of the preliminary injunction was notappealed by either original party to the suit. And neither the

Altos nor the enjoined entity, the BIA, ask this court to

dissolve the injunction or modify its scope. Rather, the Band,the intervenor in this action for limited purposes, appeals

from the district courts refusal to dissolve the injunction and

to dismiss the case.

We have jurisdiction to review a district courts refusal to

dissolve a preliminary injunction. See 28 U.S.C.

1292(a)(1). Typically, [a] party seeking modification ordissolution of an injunction bears the burden of establishing

that a significant change in facts or law warrants revision or

dissolution of the injunction. Sharp v. Weston, 233 F.3d1166, 1170 (9th Cir. 2000). That requirement presumes that

the moving party could have appealed the grant of the

injunction but chose not to do so, and thus that a subsequent

challenge to the injunctive relief must rest on grounds that

could not have been raised before. See Transgo, Inc. v. AjacTransmission Parts Corp., 911 F.2d 363, 365 (9th Cir. 1990).



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Here, however, where the Band was permitted tointervene only after the issuance of the injunction and only

for the limited purpose of filing jurisdictional motions, the

usual limitation on motions to dissolve injunctions isinapposite. The Band, as a non-party, had no prior

opportunity to challenge the grant of the injunction. And it

does not challenge the substance of the district courts

analysis as to whether injunctive relief was warranted.Instead, consistent with the limited purposes for which it was

permitted to intervene, the Band sought dissolution of theinjunction on jurisdictional grounds.

On this appeal, therefore, we do not consider the

propriety of the underlying order. Sharp, 233 F.3d at116970. To prevail on the issues that the Band can and does

raise, the Band must show that the district court erred by

applying an erroneous legal standard in determining either (1)that it had subject matter jurisdiction to adjudicate the Altos

claims and grant preliminary injunctive relief or (2) that it

was proper to proceed in the Bands absence. SeeCredit

Suisse First Bos. Corp. v. Grunwald, 400 F.3d 1119, 1126 n.7(9th Cir. 2005).

B. Scope and Substance of the Claims and the Injunctive

Relief

To review those issues, we must first clarify the scope ofthe injunctive relief granted and the claims on which it rested.

In assessing whether injunctive relief was warranted, the

district court analyzed the Altos likelihood of success only

with respect to their first three causes of action, based on resjudicata, due process, and arbitrary and capricious agency

action. The court did not discuss the merits of the fourth



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claim, related to the BIAs fiduciary duty and failure to act toprotect the Altos access to tribal rights and benefits. The

harm alleged in the Altos first three claims stemmed from

purported errors in agency decisionmaking.

Typically, a preliminary injunction issued regarding APA

review of agency decisionmaking preserves the courts

jurisdiction to grant complete relief by simply suspending theimplementation of challenged agency action pending full

court review. See, e.g., City of San Diego v. Whitman,242 F.3d 1097, 1098 (9th Cir. 2001). The original injunctionissued in this case tracked the sort of preliminary relief

ordinarily available in APA cases insofar as it restrained and

enjoined the BIA, for the duration of this lawsuit fromremoving [the Altos] from the San Pasqual Tribes

membership roll and from taking any further action to

implement the [challenged Disenrollment Order.]

The remainder of the original preliminary injunction,

paragraphs two through five, went further. It compelled the

BIA to take action to effect temporary restoration of theAltos access to tribal rights and benefits.

Recognizing that the breadth of the district courts orderwas questionable, the BIA issued a Memorandum Order and

Report of Compliance that, in operative effect, treats the

district court injunction as only suspending theimplementation of the Disenrollment Order pending plenary

review of the agencys action. While it addresses the impact

of a suspension of the Disenrollment Order on the Altos

rights and benefits vis-a-vis the Band, the Memorandum

Orderexcept in one respect we discuss laterdid notcommandthe Tribe to take any particular steps pertaining to

the Altos membership status. The legal obligations to which



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the Memorandum Order refers stem not from the coercivepower of the court or from the BIAs authority over the Band,

but rather from separate federal laws and regulations, as well

as from tribal governing documents. See, e.g., 42 C.F.R.Part 136 (establishing general principles and program

requirements for the Indian Health Service); Indian Civil

Rights Act (ICRA), 25 U.S.C. 130103; Indian Gaming

Regulatory Act (IGRA), 25 U.S.C. 27012721. Thus,although the Memorandum Order states that the Secretary is

advising the Band in compliance with the courts order,judicial authority is not the operative force behind any weightthe Secretarys words may carry.

Although asked to do so after the Secretary issued hisMemorandum Order, the district court did not compel the

BIA to comply with the injunction as originally issued. By

denying the Altos request to order the Secretary to providerelief beyond that reflected in the Memorandum Order, the

court acceded to the BIAs limited implementation of the

preliminary injunction. In practical effect, the district courts

acquiescence in the Secretarys partial compliance with theinjunction clarified the scope of the courts order.

Accordingly, the operative injunction, and the one subject to

our review, encompasses only the suspension of theimplementation of the Disenrollment Order, which according

to the BIAs Memorandum Order, will have certain impacts

on the Altos and the Band.

The Band contends that even the suspension of the

Disenrollment Order, as supplemented by the Memorandum

Order, is beyond the courts jurisdiction, because the

Memorandum Order requires the Band to treat the Altos asmembers and to provide them with the attendant rights and

benefits. The text of most of the Memorandum Order,



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however, does not substantiate those concerns. Disapprovingthe portions of the Memorandum Order that advise and

notify the Band of the implications of temporarily restoring

the Altos membership would have no effect on the Bandslegal rights and obligations vis-a-vis the Altos during the

pendency of this suit. At this juncture, we therefore need not,

and do not, decide some difficult questions posed by the

injunction in its original formulation.

The one exception to the limited nature of theMemorandum Order is the portion implementing theinjunction that states: If the Alto descendants ultimately

prevail in this litigation, the Band must distribute the funds in

the escrow account [if one is created for the purpose ofholding all per capita gaming revenues distributed to the

Altos while this suit is pending] to the Alto descendants,

including distribution to the minors trust fund as set forth inthe Bands approved RAP. The injunction as a whole,

however, provides onlypreliminaryrelief, while the language

just quoted specifies what is to happen not now, but [i]f the

Alto descendants ultimately prevail. This coercive directivetherefore does not simply implement the courts order

preserving the status quopendingits review of agency action.

We shall remand for the purpose of allowing the district

court formally to clarify the original injunction to conform to

the understanding of the now-operative injunction we havejust articulatednamely, as suspending the Disenrollment

Order while this suit is pending and as directing the BIA to

implement that suspension by advising the parties of its

impact. The part of the Memorandum Order mandating

distribution of escrowed funds if the Altos ultimately prevailgoes beyond that limited role, and so should not be approved

in the revised injunction.



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The Bands jurisdictional arguments, if accepted, wouldinvalidate the injunction even as so clarified. We therefore

do not await the clarification but address the Bands

arguments now.

C. Subject Matter Jurisdiction

The Band moved both to dissolve the preliminaryinjunction and to dismiss claims one through three on the

ground that this case presents no federal question. Itsargument is that as the BIAs disenrollment decision turnedsolely on questions of tribal law and governance, there is no

jurisdiction under the APA. We disagree.

1. The Motions to Dissolve and to Dismiss

As we have stated, we have jurisdiction to review thedistrict courts refusal to dissolve the injunction. 28 U.S.C.

1292(a)(1). We typically would not have jurisdiction on

interlocutory appeal to review the district courts concurrent

ruling on the Bands motion to dismiss under Rule 12(b)(1).Here, however, the basis asserted for dissolving the injunction

is lack of subject matter jurisdiction, the same issue that

underlies the Bands appeal of the denial of its motion todismiss claims one through three for failure to state a federal

question. See Meredith v. Oregon, 321 F.3d 807, 814 (9th

Cir. 2003). So our resolution of the issue properly raised oninterlocutory appealdissolution of the injunction

necessarily resolves the proper resolution of the motion to

dismiss. Id.(internal quotation marks omitted). As the two

issues both turn on the same jurisdictional analysis, review of

the denial of the motion to dismiss claims one through threefor lack of subject matter jurisdiction is properly pendent

to our review of the dissolution motion. Id.



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We review the district courts ruling on subject matterjurisdiction de novo. Chilkat Indian Vill. v. Johnson,

870 F.2d 1469, 147071 (9th Cir. 1989).

2. The Propriety of Agency Action is a Federal

Question

The central issue in this suit concerns tribal membershipand its attendant rights and privileges. Federal courts

generally may not interfere with tribal enrollment decisions,[g]iven the often vast gulf between tribal traditions and thosewith which federal courts are more intimately familiar . . . .

Santa Clara Pueblo, 436 U.S. at 72 n.32 (citations omitted).

Because [o]rdinarily[] federal courts lack jurisdiction toconsider an appeal from the decision of an Indian Tribe to

disenroll one of its members,Jeffredo v. Macarro, 599 F.3d

913, 917 (9th Cir. 2010), we have regularly declined toexercise jurisdiction over cases in which individuals are

seeking an order mandating BIA involvement in tribal

enrollment decisions.

Lewis v. Norton, for example, rejected the plaintiffs

effort to do an end run around tribal immunity by asking

the court to order the Department of Interior to decide in thefirst instance whether they should be enrolled as members

and afforded a share in tribal gaming revenues. 424 F.3d at

963. To adjudicate such an action would require the court toevaluate the merits of the plaintiffs claim to membership

under tribal lawin effect, to review the tribes own

determination and intervene in its actions vis-a-vis its own

members. See Alvarado, 509 F.3d at 1016.

Here, however, the Altos do not ask the federal court to

decide ab initiowhether they meet the Bands enrollment



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ALTO V.BLACK22

criteria. Rather, they seek review under the APAs arbitraryand capricious standard of the Assistant Secretarys action in

issuing the 2011 Disenrollment Order. And that action was

triggered by the Bands own request, not that of the putativetribal members.

We have previously assumed, without expressly deciding,

that we have jurisdiction to review agency action under theAPA even when the agency applies tribal law. For example,

Moapa Band of Paiute Indians v. U.S. Department ofInterior, 747 F.2d 563, 56566 (9th Cir. 1984), applied APAstandards to review the Secretary of the Interiors rescission

of a tribal ordinance, pursuant to authority granted to him by

the tribal constitution, without discussing federal questionjurisdiction. Similarly,Baciarelli v. Morton, 481 F.2d 610,

612 (9th Cir. 1973) (per curiam), applied APA standards to

review the Secretary of the Interiors reinstatement of a tribalcouncils enrollment decision, without discussing jurisdiction.

These cases are not dispositive, because the present

jurisdictional issue was not squarely addressed. See Burbank-

Glendale-Pasadena Airport Auth. v. City of Burbank,136 F.3d 1360, 1363 (9th Cir. 1998). But the cases are

persuasive authority that the exercise of jurisdiction here is

proper.

We said a bit more on the subject recently in CahtoTribe:

We have jurisdiction to review final agency action, 5 U.S.C. 704, and the BIAs 2009 decision was final for the

Department of the Interior. 715 F.3d at 1228 (citation

omitted).8 Although Cahto Tribe asserted this courts

8The issue in Cahto Tribewas whether the BIA had jurisdiction, under

the tribes governing documents, to review an individuals appeal from a

tribal disenrollment decision. 715 F.3d at 122629. The tribe in that case



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ALTO V.BLACK 23

jurisdiction to review, under the APA, the BIA actionchallenged in that suit, it did not explain why that jurisdiction

can extend to BIA action that rests on tribal law.9 We take

the opportunity to do so now.

contended that its Articles of Association do not provide for an appeal of

a disenrollment decision to the BIA. We agreed. The Band has made no

such contention hereunsurprisingly, as it was the party that appealed to

the BIA. As the BIAs authority to review the disenrollment decision of

the Bands membership committee is not in dispute, we agree with the

parties that the BIA had jurisdiction to issue the challenged Disenrollment

Order.

9Consistent with Moapa Band, Baciarelli, and Cahto Tribe, other

circuits have adjudicated APA causes of action in cases concerning Indian

affairs. The Eighth Circuit, for example, asserted jurisdiction over the

BIAs decisions whether to recognize tribal governing bodies following

tribal elections, even though the recognition decision ultimately turns on

tribal law. See Runs After v. United States, 766 F.2d 347, 351 (8th Cir.

1985); Goodface v. Grassrope, 708 F.2d 335, 339 (8th Cir. 1983). The

court was careful, however, to limit the scope of federal jurisdiction to the

propriety of the BIAs action under the APA, not the soundness of the

BIAs decision under tribal law: [The] resolution of such disputesinvolving questions of interpretation of the tribal constitution and tribal

law is not within the jurisdiction of the district court. Runs After,

766 F.2d at 352 (citing Grassrope, 708 F.2d at 33839 & n.4).

The Second Circuit similarly implied that federal jurisdiction lies

where plaintiffs seek review of an agency decision concerning Indian

affairs. Shenandoah v. U.S. Department of Interior, 159 F.3d 708 (2d Cir.

1998), explained that a federal court lacks jurisdiction over an issue of

tribal law in the absence of an initial determination by the [BIA],

implying that where there is such an agency determination, even an issue

that involves the application of tribal law may properly come before a

federal court. Id.at 712 (emphasis added) (citing GrassropeandRuns

After). And the Federal Circuit has noted that, according to the InteriorBoard of Indian Appeals, [d]ecisions of the BIA made at the level of

Assistant Secretary or above, are apparently reviewable in district court.

Kaw Nation v. Norton, 405 F.3d 1317, 1325 n.10 (Fed. Cir. 2005).



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ALTO V.BLACK24

Here, the Assistant Secretary issued the challengedDisenrollment Order in his official capacity as a manager of

Indian affairs under 25 U.S.C. 2, and in response to the

Bands appeal. Current federal regulations, codified at 25C.F.R. 62.162.12, provide procedures for filing and

processing of appeals from adverse enrollment actions by

[BIA] officials, 62.2, such as the Regional Directors

decision the Band appealed here, and expressly permit tribalcommittees to file appeals, see 62.4(b), as the Bands

committee did here. Those regulations make clear that thechallenged Disenrollment Order is final agency actionwithin the meaning of the APA, 5 U.S.C. 704. See 62.11.

Moreover, the Assistant Secretarys resolution of theenrollment dispute was consistent with the authority vested in

him by Article III, section 2 of the Bands Constitution. The

1960 Regulations specifically required the Secretary toapprove the deletion of individuals members names from the

Bands roll,see 25 C.F.R. 48.14(d) (1960). So the Bands

current Constitution, which expressly incorporates those

regulations, does so as well. And, by reason of that sameincorporation, the Secretarys decision is not committed to

agency discretion by law, 5 U.S.C. 701(a)(2). Rather, the

Secretary must apply the tribes own enrollment criteria, andis required to identify the information relied upon in reaching

his decision. See25 C.F.R. 62.1062.11.

The APA provides that [a] person suffering legal wrong

because of agency action, or adversely affected or aggrieved

by agency action within the meaning of a relevant statute, is

entitled to judicial review thereof. Darby v. Cisneros,

509 U.S. 137, 146 (1993) (quoting 5 U.S.C. 702). APA 704, in turn, specifically provides for judicial review of

final agency action for which there is no other adequate



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ALTO V.BLACK 25

remedy in a court. 5 U.S.C. 704. As these provisionsreflect, Congresss understanding in passing the APA was

that judicial review should be widely available to challenge

the actions of federal administrative officials. Califano v.

Sanders, 430 U.S. 99, 104 (1977). The APA therefore creates

a strong presumption that Congress intends judicial review

of administrative action. Bowen v. Mich. Acad. of Family

Physicians, 476 U.S. 667, 670 (1986);see alsoINS v. St. Cyr,533 U.S. 289, 298 (2001).

That the substantive law to be applied in this case is triballaw does not affect our jurisdiction over an APA challenge to

the BIAs decision. [I]t is common ground that if review is

proper under the APA, the District Court ha[s] jurisdictionunder 28 USC 1331. Bowen v. Massachusetts, 487 U.S.

879, 891 n.16 (1988); see also Sharkey v. Quarantillo,

541 F.3d 75, 8384 (2d Cir. 2008) (holding that 1331confers jurisdiction over a suit that arises under a right of

action created by the APA); Runs After, 766 F.2d at 351

(citing Grassrope, 708 F.2d at 338). The federal question for

1331 purposes is whether the BIA violated the APA; that itis claimed to have done so in a case involving application of

tribal law does not matter, any more than it would matter to

1331 jurisdiction over an APA case involving an issue ofstate law.

South Delta Water Agency v. U.S. Department of Interior,

Bureau of Reclamation, 767 F.2d 531 (9th Cir. 1985), for

example, affirmed 1331 jurisdiction to review, under the

APA, the federal governments operation of a water project

in a manner that allegedly violates state law. That case

reasoned that [s]tate law . . . adequately constrains thefederal defendants rights by providing law to be applied,

under 5 U.S.C. 706, so therefore, review is proper under



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ALTO V.BLACK26

the APA. Id. at 539. Similarly, here, the BandsConstitution, and the 1960 Regulations incorporated therein,

constrain the Secretarys actions by providing the law to be

applied, such that review under the APA is proper.

The Altos first three causes of action all concern the

manner in which the Assistant Secretary exercised his

authority to review the Bands enrollment determination.Claims one through three therefore both seek review of final

agency action and raise a federal question under the APA,over which we have jurisdiction.

In sum, we have jurisdiction over the Altos challenges to

the BIAs determination of the tribal enrollment decision.The district court properly declined to dissolve the injunction

and to dismiss the case on subject matter jurisdiction grounds.

D. Rule 19 Required Party Analysis

We turn next to the Bands alternative contentionthat

it is a required party with regard to claims one, two, andthree, so that preliminary injunctive relief as to those claims

could not be granted in its absence.

Joinder is not itself jurisdictional. See Wilbur v. Locke,

423 F.3d 1101, 110607 (9th Cir. 2005), abrogated on other

grounds by Levin v. Commerce Energy, Inc., 130 S. Ct. 2323(2010). In this case, however, joinder of the Band, if

required, would in turn raise sovereign immunity questions

regarding the propriety of any adjudication of the Altos

claims. If the Band is a required party for the causes of action

underlying the injunction, then the propriety of the reliefgranted by the district court depends, first, on whether the

Bands joinder would be precluded by tribal sovereign



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ALTO V.BLACK 27

immunity, which the Band has invoked,see, e.g.,Maxwell v.Cnty. of San Diego, 708 F.3d 1075, 1086 (9th Cir. 2013); and

second, if so, whether the court can in equity and good

conscience proceed to adjudicate those claims without theBand. See Fed. R. Civ. P. 19(b);see also Wilbur, 423 F.3d at

111415 (applying the Rule 19(b) factors to a sovereign

tribe).

Moreover, the Rule 19 inquiry would, if resolved in the

Bands favor, result in dissolving the injunction. Therewould then be no likelihood of success on the merits. Yet,the Band had no opportunity fully to litigate that issue until

permitted to intervene for limited purposes. Thus embedded

in the Rule 19 issue in this case is a quasi-jurisdictionalissuesovereign immunityas to which the affected party

would ordinarily be entitled to appeal denial of a motion to

dismiss. See Terenkian v. Republic of Iraq, 694 F.3d 1122,1131 (9th Cir. 2012) (citingPhaneuf v. Republic of Indon.,

106 F.3d 302, 304 (9th Cir. 1997));Doe v. Holy See, 557 F.3d

1066, 1074 (9th Cir. 2009) (per curiam). Review of the

Bands Rule 19 arguments as they pertain to the claimscovered by the preliminary injunction is therefore properly

before us.

We review the district courts denial of the Bands Rule

19 motion for abuse of discretion, but review the legal

conclusions underlying that determination de novo. Salt

River Project Agric. Improvement & Power Dist. v. Lee,

672 F.3d 1176, 1179 (9th Cir. 2012); see alsoDisabled

Rights Action Comm. v. Las Vegas Events, Inc., 375 F.3d 861,

879 (9th Cir. 2004).

The first step in compulsory joinder analysis is to

determine whether the Band is a required party to the action.



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ALTO V.BLACK28

Joinder of the Band is required if either: (1) the courtcannot accord complete relief among existing parties in the

Bands absence, or (2) proceeding with the suit in its absence

will impair or impede the Bands ability to protect aclaimed legal interest relating to the subject of the action, or

leave an existing party subject to a substantial risk of

incurring double, multiple, or otherwise inconsistent

obligations because of the interest. Fed. R. Civ. P.19(a)(1)(A)(B); Shermoen v. United States, 982 F.2d 1312,

1317 (9th Cir. 1992). We examine each factor in turn. Onlyif we determine that the Band is a required party do weproceed to the second Rule 19 inquiry: whether joinder is

feasible, or is barred by sovereign immunity. Finally, only if

joinder is impossible must we determine whether, in equityand good conscience, the suit should be dismissed. See Fed.

R. Civ. P. 19(a)(b); EEOC v. Peabody W. Coal Co.,

400 F.3d 774, 77980 (9th Cir. 2005);Dawavendewa v. Salt

River Project Agric. Improvement & Power Dist., 276 F.3d

1150, 1155 (9th Cir. 2002) (quoting Confederated Tribes of

Chehalis Indian Reservation v.Lujan, 928 F.2d 1496, 1498

(9th Cir. 1991));Makah Indian Tribe v. Verity, 910 F.2d 555,558 (9th Cir. 1990). This determination is necessarily fact-

and circumstance-specific. Confederated Tribes, 928 F.2d at

1498.

As will appear, we resolve the Rule 19 question at step

one.

1. Complete Relief

Complete relief is concerned with consummate rather

than partial or hollow relief as to those already parties, andwith precluding multiple lawsuits on the same cause of

action. Disabled Rights, 375 F.3d at 879 (citations and



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ALTO V.BLACK 29

internal quotation marks omitted). To be complete, reliefmust be meaningful relief as between the parties. Id.

(emphasis added).

Ruling for the Altos on any or all of their first three

claims would mean vacating the Disenrollment Order and,

unless determined to be barred by res judicata (as the Altos

maintain in their first claim for relief), remanding to the BIAfor redetermination of the Altos enrollment status. That

relief is meaningful as between the Alto descendants andthe BIA, even if it does not bind the Tribe directly.

In several past cases involving Rule 19 motions by Indian

tribes, we have held it impossible to afford complete reliefbecause the courts judgment would not bind the absent tribe.

See, e.g.,Dawavendewa, 276 F.3d at 115556; Confederated

Tribes, 928 F.2d at 1498. In those cases, however, the injurycomplained of was a result of the absent tribes action, not

only or principally that of the named agency defendant. Such

is not the case here with respect to the Altos first three

causes of action.

InDawavendewa, for example, the plaintiff challenged a

provision of a lease agreement between the defendant powercompany and the Navajo Nation, the lessor of the land on

which the company operated a facility. See 276 F.3d at

115354. The provision required the power company to givemembers of the Navajo tribe preferential treatment in hiring.

Id.at 1153. We held that the Navajo Nation was a necessary

party to the suit because the court could not assure the

plaintiff his requested reliefemployment by the

defendantin the Nations absence. Even if the court ruledin the plaintiffs favor and enjoined the defendantlessee

from applying the challenged lease condition, the tribe could



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ALTO V.BLACK30

still move to enforce its rights under the lease and ultimatelyevict the employer from the reservation,Disabled Rights,

375 F.3d at 880 (discussing Dawavendewa), and insist on

enforcing the provision with a new lessee. See

Dawavendewa, 276 F.3d at 115558.

We reached a similar conclusion in Confederated Tribes.

There, a group of Indian tribes brought suit to enjoin thefederal government from negotiating with the Quinault

Nation as the sole governing authority for the QuinaultNation Indian Reservation, requesting a declaratory judgmentrejecting the Quinault Nations exclusive governing status.

928 F.2d at 1497. But the plaintiffs did not name the Nation

as a party. We concluded that joinder of the Quinault Nationwas necessary because a judgment against the federal

defendants would not bind the Nation, which could continue

to assert sovereign powers and management responsibilitiesover the reservation, the very practice that prompted the

plaintiffs complaint. Id. at 1498.

Here, in contrast, the injury complained of in the firstthree causes of action is the BIAs violation of the APA in

carrying out a responsibility delegated to it by the Band,

under the Bands own Constitution. The injury resulted fromthe Secretarys actions in ruling the Altos ineligible for tribal

membership, not from the Bands prior actions with regard to

the membership issue. Vacating or reversing theDisenrollment Order, and remanding if necessary for

rehearing, would afford the Altos complete relief as to their

first three causes of action. We may assume that the Band

will then abide by the BIAs decision, as it is committed by

its own Constitution to do, and will also, consistently with itsConstitution, provide the Altos with the various requisites of

membership.



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ALTO V.BLACK 31

Should that not occur, then questions regarding theavailability of further BIA and judicial enforcement will

arise. Some of those questions may be addressed, or

anticipated, in the fourth and fifth causes of action in theAltos First Amended Complaint. But as we have explained,

those causes of action are not presently before us. As to the

three causes of action that are before us, complete

reliefthat is, relief limited to that available in an APA causeof action, which is affirmation, reversal or remand of the

agency actioncan be provided between the parties. Thepractical implications of the Secretarys decision for theAltos entitlement to tribal rights and benefits hinge not on

any court order, but on the Bands legal duties to its

members, under its own governing documents and applicablefederal law.

In short, the Tribes absence does not preclude completerelief as to the Altos first three causes of action.

2. Protection of Legal Interests and Avoidance of

Inconsistent Obligations

The second factor in determining whether an absent

partys joinder is required focuses on whether the absentpartys participation is necessary to protect its legally

cognizable interests or to protect other parties from a

substantial risk of incurring multiple or inconsistentobligations because of those interests. Disabled Rights,

375 F.3d at 880;see also Fed. R. Civ. P. 19(a)(1)(B)(i) & (ii).

The Band asserts interests in ensuring that only qualified

individuals are enrolled and in maintaining its sovereignty

over membership matters.



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ALTO V.BLACK32

As a practical matter, an absent partys ability to protectits interest will not be impaired by its absence from the suit

where its interest will be adequately represented by existing

parties to the suit. Washington v. Daley, 173 F.3d 1158,1167 (9th Cir. 1999). We consider

three factors in determining whether existing

parties adequately represent the interests ofthe absent tribes: whether the interests of a

present party to the suit are such that it willundoubtedly make all of the absent partysarguments; whether the party is capable of

and willing to make such arguments; and

whether the absent party would offer anynecessary element to the proceedings that the

present parties would neglect.

Shermoen, 982 F.2d at 1318 (quoting Cnty. of Fresno v.Andrus, 622 F.2d 436, 439 (9th Cir. 1980)). Applying those

factors, we conclude that the Bands interest in limiting

enrollment to qualified individuals is adequately representedby the BIA.

First, the United States shares with the Tribe an interestin defending the Assistant Secretarys Disenrollment Order,

which granted precisely the relief the Tribe sought when it

appealed to the BIA. The BIA has, to date, vigorouslydefended its Disenrollment Order on its merits. The Band has

not presented any arguments that it would offer in defense of

the Order which the BIA has not or would not make.

Second, consistent with its fiduciary responsibility toIndian tribes, the BIA has repeatedly avowed its intention and

ability to represent the Bands interests with respect to the



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ALTO V.BLACK 33

APA aspects of the complaint, claims one through three.[T]he federal government, including the Secretary, has a

trust responsibility to the Tribe[], as a trustee, which

obligates the Secretary to protect the Tribe[s] interests inthis matter. Daley, 173 F.3d at 1168.

To be sure, conflicts can arise between the United States

and an Indian tribe; when they do, the government cannotadequately represent the tribes interests. Id.at 1167. But no

such conflict has surfaced to this point in this case, as thedistrict court, and now this court, has addressed only claimsone through three in the Altos complaint. The Assistant

Secretary is defending the very order requested by the Band,

which strips the Altos of their status as members of afederally recognized tribe. It cannot be said that the

Secretarys trust obligations to the Band are at odds with the

BIAs obligations to the Altos, whose membership the Bandcontests. As the BIA points out:

[I]t is inherent in the process the Tribe created

in its Constitution for the determination ofmembership in the Tribe, and the

disenrollment of members whose enrollment

was based on inaccurate information, that thefinal decision maker, the Secretary of the

Interior, have fiduciary duties to both the

Tribe and any Indians whose membership inthe Tribe is in dispute. Since those duties did

not deter the Tribe from making the Secretary

of the Interior the final decision maker, they

should not prevent him from defending his

decision.



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ALTO V.BLACK34

Finally, because the courts review of the DisenrollmentOrder is limited to the administrative record before the BIA,

see Fence Creek Cattle Co. v. U.S. Forest Serv., 602 F.3d

1125, 1131 (9th Cir. 2010), the Tribe could not offer newevidence in the judicial proceedings that would materially

affect the outcome of claims one through three.

The Band also points to a dispute over the interpretationof tribal law as evidence that the United States cannot

adequately represent its interests. Specifically, the Tribemaintains that the Disenrollment Order took immediate effectupon issuance, whereas the district court concluded (and the

BIA initially argued) that the Altos would retain their

membership status until the Secretary of the Department ofInterior approves a revised membership roll for the Band, on

which the Altos names do not appear.10But the ability of the

district court to afford complete relief on the Altos first threeclaims does not turn on the resolution of this dispute.

If the Disenrollment Order is invalidated and the case

remanded to the agency, then the effective date of the orderwill be of no consequence: the Altos would have remained

members of the Tribe throughout the pendency of this

dispute, and would be entitled to any attendant benefits asprovided in the tribes governing documents and applicable

federal law. If, on the other hand, the Disenrollment Order is

upheld, then questions concerning the date of the Altosdisenrollment can be addressed by the appropriate body or

bodies, whether that be the Band alone or the Band with an

appeal to the BIA. Finally, during the pendency of this

litigation, under the district court injunction as clarified and

10The Altos fifth cause of action seeks a declaratory judgment to this

effect.



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ALTO V.BLACK 35

implemented by the Memorandum Order, any disenrollmentdate does not matter, as the Disenrollment Order is

inoperative.

As to the Bands legal interest in maintaining sovereign

control over membership issues, granting the relief requested

in claims one through threevacatur of the BIAs

Orderwould not undermine authority the Tribe wouldotherwise exercise. The Tribe itself has delegated its

authority over enrollment to the BIA. See Const. of Band,art. III, 2. The Altos do not seek to alter the Bands rightsvis-a-vis enrollment decisions. Any attempt to do so in the

Bands absence would clearly be impermissible. SeePit

River Home & Agric. Coop. Assn v. United States, 30 F.3d1088, 1099 (9th Cir. 1994) (holding that a tribal council was

a necessary party in a suit challenging the councils

designation by the Secretary of Interior as the beneficiary ofreservation property); Confederated Tribes, 928 F.2d at

149899 (holding the Quinault Nation a necessary party in a

suit challenging the United States recognition of the Nation

as the sole governing authority of a reservation). Rather,temporarily making the Disenrollment Order unenforceable

is akin to staying removal in the immigration context; it

operates only upon the . . . proceeding itself, and does notimpose a coercive order on any sovereign entity. Cf. Leiva-

Perez v. Holder, 640 F.3d 962, 966 (9th Cir. 2011) (per

curiam) (citation and internal quotation marks omitted).

In sum, complete relief can be afforded in the Bands

absence as to the Altos claims regarding the propriety of the

Assistant Secretarys Disenrollment Order. Because the

Tribe is not a necessary party to the first three causes ofaction, the district court did not err in declining to decide

whether tribal sovereign immunity bars the Bands joinder,



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ALTO V.BLACK36

and if so, whether the action should be dismissed under Rule19(b).

E. The Motions to Dismiss Claims Four and Five

The Band urges us to review the disposition of its motions

to dismiss the fourth and fifth causes of action. But as the

district court made clear in the order under review, theclarified preliminary injunction does not rest on the Altos

fourth and fifth claims.11

Determining whether the court hassubject matter jurisdiction over claims four and five, orwhether the Band is a required party to those claims, is

therefore not necessary to our review of the order refusing to

dissolve the injunction. Consequently, our pendentjurisdiction does not extend to the Bands motions to dismiss

those claims.

Nor do the Bands motions on claims four and five

independently fall under the collateral order aspect of the

final judgment rule. The collateral order doctrine, first

articulated in Cohen v. Beneficial Industrial Loan Corp.,337 U.S. 541, 54647 (1949), permits review as if they were

final decisions of a small class of orders that: (1)

conclusively determine the disputed question; (2) resolve animportant issue completely separate from the merits of the

action; and (3) would effectively be unreviewable on appeal

from a final judgment. Rodriguez v. Lockheed Martin

11To the degree that the Altos fourth and fifth claims seek further relief

beyond the clarified injunction on a different legal basisnamely, that theBIA has a fiduciary duty to ensure their access to tribal rights and

benefitsthe district court has not addressed that legal question, so there

is no pendent issue before us.



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ALTO V.BLACK 37

Corp., 627 F.3d 1259, 1264 (9th Cir. 2010) (citation,alterations, and internal quotation marks omitted).

The district courts order deferring adjudication of theBands motion to dismiss the Altos fourth and fifth causes of

action does not satisfy the first of these criteria. An order

deferring a ruling is not conclusive. Miller v. Gammie,

335 F.3d 889, 895 (9th Cir. 2003) (en banc). Moreover, evenif we were to construe the district courts deferred ruling on

the motion regarding claims four and five as a decisiondeclining to dismiss, as the Band asks us to do, we would nothave jurisdiction to review that decision now. The denial of

the Bands Rule 12(b)(1) motion to dismiss claims four and

five for lack of subject matter jurisdiction is not appealableunder the collateral order doctrine. See Catlin v. United

States, 324 U.S. 229, 236 (1945);Kwai Fun Wong v. United

States, 373 F.3d 952, 960 (9th Cir. 2004); United States v.

Atwell, 681 F.2d 593, 594 (9th Cir. 1982) (citing UnitedStates v. Layton, 645 F.2d 681, 683 (9th Cir. 1981)).

Nor is the denial of the Bands Rule 12(b)(7) motion todismiss those claims for inability to join a required party

under Rule 19 among the narrow class of rulings collaterally

appealable. One criterion for application of the collateralorder doctrine is that the order would effectively be

unreviewable on appeal from a final judgment. Rodriguez,

627 F.3d at 1264. Courts can, and do, effectively review andcorrect Rule 19 decisions after final judgment, including by

ordering dismissal at that point of the lawsuit, as otherwise

appropriate, if a required party cannot be joined. See, e.g.,

Provident Tradesmens Bank & Trust Co. v. Patterson,

390 U.S. 102, 11012 (1968) (considering a partysindispensability under Rule 19(b) on an appeal from a final

judgment); Universal Reinsurance Co. v. St. Paul Fire &



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ALTO V.BLACK38

Marine Ins. Co., 312 F.3d 82, 8789 (2d Cir. 2002) (same);United States v. San Juan Bay Marina, 239 F.3d 400, 40507

(1st Cir. 2001) (same); Gardiner v. V.I. Water & Power

Auth., 145 F.3d 635, 64043 (3d Cir. 1998) (same). Althoughno Ninth Circuit opinion so states, other circuits have held

that a Rule 19 determination is not immediately appealable,

because it canbe reviewed after a final judgment. See, e.g.,

Crowe & Dunlevy, P.C. v. Stidham, 640 F.3d 1140, 1148(10th Cir. 2011); MasterCard Intl Inc. v. Visa Intl Serv.

Assn, 471 F.3d 377, 38384 (2d Cir. 2006);Price v. J & HMarsh & McLennan, Inc., 493 F.3d 55, 63 (2d Cir. 2007).We find the reasoning of these cases persuasive, and so hold

as well.

We recognize that the district courts denial of a motion

to dismiss on grounds of sovereign immunity is immediately

appealable under the collateral order doctrine. See Terenkian,694 F.3d at 1131 (citingPhaneuf, 106 F.3d at 304);Holy See,

557 F.3d at 1074. Thus, had the Band been named as a party

and then moved to dismiss the suit on grounds of tribal

immunity, the district courts denial of such a motion orrefusal to rule on it would be subject to interlocutory appeal.

But that exception does not apply here. The Bands

immunity argument is of a second order; we would reach itonly if we first reversed the district courts determination

under Rule 19(a) that the Band was not a required party for

claims four and five. But as those claims are not presentlybefore us, we have no reason to reach that question. And

unless and until the Band is determined to be a required party

for purposes of claims four and five, the sovereign immunity

issue does not arise. The immunity issue regarding claims

four and five is therefore premature, and we may not reach it,via the collateral order doctrine or otherwise.



39/39

ALTO V.BLACK 39

In sum, we lack jurisdiction at this stage to reviewwhether the Altos fourth and fifth claims should be

dismissed under either 12(b)(1) or 12(b)(7).

III. CONCLUSION

The district court properly exercised subject matter

jurisdiction over the Altos claims challenging the agencysfinal action and correctly concluded that the Band is not a

required party to the resolution of those claims. Accordingly,the Band has demonstrated no basis for dissolving thepreliminary injunction presently in effect, as articulated in the

BIAs Memorandum Order.

For the foregoing reasons, we AFFIRM the district

courts denial of the Bands motion to dissolve the

preliminary injunction as limited by the BIAs MemorandumOrder, prohibiting the BIA from giving effect to the

Disenrollment Order pending adjudication of this suit. But

we REMAND to allow the district court formally to clarify

the original injunction to conform with the understanding ofthe injunction we have described. We likewise AFFIRM the

denial of the motion to dismiss claims one through three of

the Altos First Amended Complaint. Finally, we DISMISSfor lack of jurisdiction the Bands appeal as to its motion to

the dismiss claims four and five.

AFFIRMED IN PART, DISMISSED IN PART, AND

REMANDED.


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